N.M. R. Mun. Ct. P. 8-108
N.M. R. Mun. Ct. P. 8-108
Committee commentary. - This rule permits a defendant to expressly waive appearance in municipal court for the proceedings listed in Subparagraph (D)(4) of this rule if the waiver is knowing, voluntary, and intelligent. See State v. Padilla, 2002-NMSC-016, ¶ 14, 132 N.M. 247, 46 P.3d 1247 (concluding that a trial court may "accept a knowing, intelligent, and voluntary waiver of a defendant's presence, either as an express waiver or as an implied waiver when a defendant has forfeited his or her right to presence by conduct"). However, unless the case is one that may be disposed of without a hearing under Rule 8-503 NMRA, a defendant in municipal court may not waive appearance for the entry of a guilty or no contest plea. A defendant who pleads guilty or no contest waives multiple trial rights, including (1) the right to a speedy and public trial; (2) the privilege against self-incrimination, (3) the requirement that the prosecution must prove guilt beyond a reasonable doubt; (4) the right to appear and defend against the charges; and (5) the right to confront one's accusers. To ensure that the defendant's waiver of these constitutional trial rights and entry of a guilty or no contest plea is knowing, intelligent, and voluntary, the municipal court shall not accept a plea of guilty or no contest without first advising the defendant as required by Rule 8-502 NMRA in open court, which may include an audio or audio-video appearance under Rule 8-109A NMRA.
[Adopted by Supreme Court Order No. 15-8300-009, effective for all cases pending or filed on or after December 31, 2015.]
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-024, effective December 31, 2016, provided that if an attorney has entered on the defendant's behalf, a defendant's appearance is not required at proceedings in municipal court involving a question of law; and in Subparagraph (D)(2), after "question of law", added "if an attorney has entered on the defendant's behalf". The 2015 amendment, approved by Supreme Court Order No. 15-8300-009, effective December 31, 2015, defined a defendant's presence in court proceedings to include physical presence as well as appearing through audio or audio-visual communication, specified additional court proceedings when a defendant's presence is required and when a defendant's presence is not required, provided a standard which a judge must apply to justify the exclusion of a defendant from court proceedings when the defendant is disruptive, provided for a defendant to regain the right to be present in court proceedings after being excluded for disruptive conduct, provided for a defendant to expressly waive his appearance in court proceedings, and added the committee commentary; in the heading of the rule, after "defendant", deleted "appearance of counsel"; in Paragraph A, in the heading, deleted "required" and added "defined", after the heading, added "The defendant's 'presence,' as used in this rule, may include either", and added Subparagraphs A(1) and (2); designated language formerly in Paragraph A as Paragraph B, added the heading "Presence required.", and added "Except as otherwise provided by this rule"; added Subparagraph B(1); added the Subparagraph B(2) designation, and after "trial", deleted "including" and added "; and"; added the Subparagraph B(3) designation and after "sentence", deleted "except as otherwise provided by these rules"; redesignated former Paragraphs B and C as Paragraphs C and D, respectively; in Subparagraph C(1), after "commenced", added "regardless of whether the court informed the defendant of an obligation to remain present"; in Subparagraph C(2), after "engages in conduct", deleted "which justifies excluding" and added "that the court determines, by clear and convincing evidence, to be so disruptive as to justify the exclusion of", after "defendant from", deleted "the proceeding" and added "further proceedings.", and added the last sentence; in Subparagraph D(1), deleted "A corporation" and added "a defendant who is an organization"; added Subparagraphs D(2) and (3); added the Subparagraph D(4) designation, after "municipal court", deleted "with the written consent of the defendant", after "may", deleted "permit" and added "accept a knowing, intelligent, and voluntary waiver of the defendant's right to be present for first appearance", after "arraignment", added "entry of a", after "plea", added "of not guilty", after "trial", deleted "and" and added "or the", after "imposition of", added "any", after "sentence", deleted "in the absence of the defendant", and added the last sentence.
For forms on waiver of appearance and certificate of defense counsel, see Rule 9-104 NMRA. Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 692 to 700, 901 to 935. Presence of accused during view by jury, 30 A.L.R. 1357, 90 A.L.R. 597. Personal presence of defendant and his counsel as necessary to the validity of discharge of jury in criminal case before reaching verdict, 150 A.L.R. 764. Right of accused to be present at polling of jury, 49 A.L.R.2d 619. Power to try one charged with misdemeanor in his absence, 68 A.L.R.2d 638. Absence of convicted defendant during hearing or argument of motion for new trial or in arrest of judgment, 69 A.L.R.2d 835. Propriety of criminal trial of one under influence of drugs or intoxicants at time of trial, 83 A.L.R.2d 1067. Exclusion or absence of defendant, pending trial of criminal case, from courtroom, or from conference between court and attorneys, during argument on question of law, 85 A.L.R.2d 1111, 23 A.L.R.4th 955. Validity of jury selection as affected by accused's absence from conducting of procedures for selection and impaneling of final jury panel for specific case, 33 A.L.R.4th 429. 23A C.J.S. Criminal Law §§ 1161 to 1167.